Help!

[Large99]

In April 2012 I employed a registered childminder to look after my baby daughter.

A contract was signed and she commenced childminding.

From then we also became friends.

All was well until Feb 2013 when the childminder accused me of having a relationship with her ex and she gave me 6 weeks notice of termination of her services.

Obviously this was a difficult situation and I removed my daughter almost immediately from her care (she had previously stated to me that she had attempted suicide)

Having removed my daughter from her care I received a letter from the childminder asking for the outstanding child are fees along with the 6 weeks notice fee.

I wrote to the childminder and enclosed a cheque (made out by my mother) for the outstanding child care fees as full and final payment for termination of her services, which she duly cashed.

However I have now been summonsed to the small claims court as she is trying to recover the outstanding 6 weeks.

I have received her statement which is mainly denying her suicide attempt, the alleged relationship I had with her ex and a number of references from other parents who use her services.

I am looking for advice as to my best way to proceed, if this is worth fighting and if so. How?

Any help and advice would be very gratefully appreciated.

[raydetinu]

I dont see any grounds for NOT paying the six weeks notice, if that was in your contract.

[unclebulgaria67]

I dont see any grounds for NOT paying the six weeks notice, if that was in your contract.

 

Agree. It is your choice whether you pay what is due under the contract or decide to defend. If you defend, I presume that you would do so on the basis that the childminder had withdrawn her services citing several grounds for doing so. You would contend that no payment for the 6 weeks is due, as the childminder was not continuing to provide the care service, as detailed in the contract. Obviously in court, all the personal stuff may come out and you will have to deal with it. If you defend, would you be willing to do this yourself or use a Solicitor. The latter would be expensive and you would not necessarily get the cost back.

 

Was is the approximate value of the claim being made ?

[Large99]

The claim made is for £1095. That includes costs and expenses. I am unrepresented.

I was under the impression that the fact she accepted and cashed the cheque made out by Mum (being a third party) in full and final settlement of termination of the contract would put and end to it. Am I wrong assuming this?

[AndyOrch]

I wrote to the childminder and enclosed a cheque (made out by my mother) for the outstanding child care fees as Full and final payment for termination of her services, which she duly cashed.

 

I assume you retained a copy of the F&FP letter...and if so that's your defence.

 

Regards

 

Andy

[steampowered]

In addition to the issue of the cheque, I think you may be able to say that you were justified in terminating the contract early due to the suicide comment. Basically you would say it was a term of the contract that she is able to look after your child appropriately, the suicide comment is a breach of that and you terminated the contract accordingly. If the court accepts that she made the suicide comment I would think this is a strong argument, assuming that this was the reason why you removed the child from her care. If it was a comment made some time ago it is a less convincing argument.

[Large99]

I have a copy of the letter sent with the cheque and a copy of the cashed cheque.

In relation to the suicide she has provided a letter from her doctors stating she has never been prescribed anti depressants or visited them in relation to mental health issues

[steampowered]

I feel that part of the story is missing - it would be fairly odd for someone to file the letter together with their Particulars of Claim. What stage are the proceedings at?

[Desperate Daniella]

When exactly did she tell you she had attempted suicide? How long was it before the conversation when she gave you the six weeks' notice?

[Large99]

The proceedings are at a court hearing next month.

Having made the accusation of infidelity with her ex she served me with notice.

Obviously this made it difficult for us to work together and I removed my daughter from her care almost immediately.

A week or so later she wrote to me asking for the six weeks notice along with what I already owed in childminding she had done.

My Mum wrote a cheque for the outstanding fees and I enclosed it with a letter stating it was full and final payment for termination of her services.

She wrote back accepting the cheque (after it had been cashed) asking for the six weeks notice, following which I had a letter from the courts.

I submitted my defence online and a few weeks ago I received a letter from the court telling me there was to be a hearing.

She has supplied me with her evidence and I am in the process of getting my disclosure together.

As I have previously said I was under the impression that if you had accepted payment from a third party (my Mum) the contract then lies with my Mum. I also thought that accepting and cashing this cheque as full and final settlement for termination of her services would be the end of the contract?

In relation to the suicide attempt, this happened just before Christmas.

[Desperate Daniella]

It used to be the case that if someone cashed a cheque sent as a full and final settlement then they accepted it as such and had no further claim, but it's no longer as clear cut as that. You have a point in that she accepted the cheque from your mother as a third party, but it's going to be down to the judge's interpretation.

 

You shouldn't refer to the suicide attempt as a reason for removing your daughter. It weakens your own case. It happened in December but you did not remove your daughter until April and if she turns up with a solicitor he'll tie you up in knots: "If this were a matter of concern for you, how could you continue to leave your daughter with this woman?" That wouldn't look good for you at all.

 

I think from what you've said that she was willing to look after your daughter for the six weeks notice period, but you took her away almost immediately so as she sees it she has lost six weeks money. If you could find out that she immediately took on another child and was therefore not out of pocket that might help you a bit.

 

Apart from the full and final cheque argument I don't think your case is that strong. Have you thought about offering her half the money and seeing if you can settle before it comes to Court? If she refuses you can at least demonstrate to the judge that you were trying to settle.

[steampowered]

You have already filed your Defence, so you will need to defend on the basis of that document.

 

As I have previously said I was under the impression that if you had accepted payment from a third party (my Mum) the contract then lies with my Mum.

Not true. You do not get released from the contract.

 

I also thought that accepting and cashing this cheque as full and final settlement for termination of her services would be the end of the contract?

Possibly, on two conditions. First, that it was very clear that the cheque was only offered on the condition of full and final settlement. This should be very clear from the cover of the letter and, ideally, on the cheque itself (and you should provide evidence of this). Second, that there is "consideration" or "element of exchange" for the other side agreeing to accept less money. There will be consideration if the debt is genuniely disputed (as in this case) or payment is accepted from a third party (as in this case).

 

See http://www.dwf.co.uk/news/view-point/cheques-tendered-in-full-and-final-settlement/.

 

The "full and final" settlement point sounds hopeful, assuming you have evidence to back it up. The point about suicide sounds less hopeful if it happened back in December. The mere fact payment was made by your Mum is not relevant by itself, it is only relevant as part of the "full and final settlement" point.

[raydetinu]

The full and final settlement can only be relevant if that is agreed by both parties and accepted as such.

You cannot unilaterlly apply it, without agreement which she clearly did not.

The cheque you sent was for services already received, so does not count.

If you had sent a seperate cheque for a portion of the notice payment then maybe if she cashed that it could interpretted that way, however thats what courts are for.

A contract is a contract and the judge will decide on any dispute.

I do not think you will win and you will have to pay her costs as well, which may not be much.

You could make an offer to settle but she has a very strong case.

Edited May 21, 2013 by raydetinu

[Desperate Daniella]

That is a good point which I had overlooked. She has only been paid for the work she had actually done, and you have paid her nothing in lieu of notice. So she will argue that she cashed the cheque in full and final settlement of the fees outstanding which I think the judge will agree she was entitled to do. The claim is for fees in lieu of notice and if the contract states that she is entitled to six weeks' notice or payment instead, then I think she may win.

 

I know this isn't what you want to hear. I do think you should try and negotiate with her before it goes to Court.

[steampowered]

Unlike cash or bank transfer, the courts view cheques as conditional payment. If you write "full and final settlement" on a cheque in circumstances where there is a dispute, that can be viewed as an offer to settle the dispute which is accepted by cashing the cheque. There are caveats to this (for example, it doesn't normally work if there is no genuine dispute) but generally speaking if the recipient wishes to sue for more money he shouldn't cash the cheque.

 

An example is the case of Bracken and Another v Billinghurst [2003] All ER (D) 488 (Jul), where the Defendants cashed a cheque for £5,000 in full and final settlement. The covering correspondence sent by the defendant's solicitors clearly stipulated that "The payment is tended as an offer of settlement which will deemed to have accepted by you and therefore be contractually binding if it is presented to your bank and cleared for payment. If you are not willing to accept the payment on these terms, would you please return the payment and we will assume therefore that the dispute will have to continue". It was held the presentation of the cheque was construed to be a clear acceptance of the offer of compromise, thus Claimant could not sue for more money.

 

Personally I think this one could go either way. Perhaps a good compromise would be to offer half?

[raydetinu]

AS said thats what courts are for!!

We cant decide whats right or fair just offer an opinion.

OP can offer what she likes but doubt they will accept. I would not!

Surely the amount paid for services already received is not in dispute! only the notice payment and that has not been addressed.

The OP took the option that best suited her situation, for which she should now pay. in my opinion.

[Desperate Daniella]

The solicitor's letter in Bracken ..... is quite clear and you'd have to be a total idiot not to understand that if you cashed the cheque you were accepting that you would relinquish your claim for any further money. It depends on what the OP put in her covering letter of course, but if I had put in the claim against the OP my arguments would be that

 

I had offered to work out my notice and it was the defendant who did not want me to do so and removed her child, and the contract stated quite clearly that I was due payment in lieu of notice.

 

I had cashed the cheque because it was for work I had already done and doing so should not affect my claim for payment in lieu of notice.

 

The attempted suicide argument is not a good one, because if the OP was seriously worried about the mental health of the childminder then surely she would not have allowed her to continue to look after her child for four months after the event?

 

As I've said above, I really think the OP should try and settle this before it goes to court. Of course she could win; it will depend on the judge on the day. On balance though I think the claimant has the better arguments.